How Do State Laws Vary for Users of Medical Marijuana?

State laws vary greatly as to the legality of medical marijuana. Some states provide no protection for the users of medical marijuana. In other states medical marijuana has been legalized, but even among these states, there remain differences as to the specific criteria for being a legal user of medical marijuana. There are two main policy determinations for determining the ultimate scope of state medical marijuana laws:

Types of Illnesses That Can Be Treated by Medial Marijuana - State laws vary widely as to what illnesses are treatable with medical marijuana. Common illnesses are cancer, glaucoma, pain, chronic illnesses, HIV/AIDS. Some states have chosen to not limit the types of illnesses for which medical marijuana may be prescribed.

Types of Programs - Currently, there are four types of state programs that determine whether medical marijuana is legal. States may follow only one or all of the following programs:

Therapeutic Research Program (TRP): Medical marijuana use is allowed after the enlistment into a state program, with treatment and use monitored and studied by doctors and scientists. These programs offer the least protection for users of medical marijuana, and are typically very rare even in states with an active program. (14 states).

Rescheduling: Most states mirror the federal scheduling system by naming marijuana a Schedule I drug, which designates marijuana as a drug which has no currently accepted medical use in treatment in the United States. Some states have begun to reschedule marijuana as a Schedule II drug, which limits the sentences and penalties users can face on drug charges. (three states).

Physician Prescription: While similar to the rescheduling law, this program allows doctors to both discuss the benefits of marijuana as an alternate treatment and prescribe it as a treatment at the request of a patient. (13 states).

Medical Necessity: Medical necessity compliments the physician prescription program, but extends protection to criminal prosecution, wherein a medical marijuana user may raise the issue of medical necessity as a defense for possession or use. (nine states).

Some states have legalized CBD oil, which is a non-psychoactive oil derived from either marijuana or hemp. These states include: Alabama, Georgia, Iowa, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming. Many of these states impose additional requirements, such as a doctor's recommendation for use of CBD oil and/or the individual taking the oil must be a child that suffers from severe epilepsy.

How Does Federal Law Affect State Laws?

As a rule, when federal and state laws conflict, the federal law prevails. Therefore, since Congress bans all marijuana use, nobody in the United States is immune from the federal government enforcing federal laws, even if the drug is permitted under state law. As of December 2014, Congress has passed a budget provision that prohibits the use of federal funding to prevent state implementation of medical marijuana programs.

Although the use of marijuana for any purpose is still illegal under federal law, passage of this law will limit the number of federal prosecutions in states that recognize medical marijuana at the budget was passed. Individuals and businesses in states that have not passed medical marijuana programs will not be protected.

Note that this provision only limits interference with medical marijuana. If the Justice Department can prove that marijuana possession, cultivation, and/or distribution was for recreational use, the provision would not be an obstacle to prosecution.

Are There Any Limitations to a Medical Marijuana Defense?

Medical marijuana is a strong defense if you are charged with marijuana possession, but it does have its limits:

Only certain jurisdictions recognize it. If you are in a state which does not legalize medical marijuana, it’s not applicable. You cannot assert a medical marijuana defense in Texas even if you came from California.

It is an affirmative defense. This means the police arrest people first and courts ask questions later.

States have a limit as to how much marijuana a patient can possess. Marijuana possession over the limit is not protected.

This defense only applies to possession. If the patient is charged with distribution, the patient won’t be protected.

Most states require the patient be registered with the state medical marijuana program or hold a doctor’s note.

Medical marijuana is a valid defense, but there should be additional defenses if the prosecution finds a way around it.

Should I Contact a Lawyer about My Use of Medical Marijuana?

Because medical marijuana laws vary so much between the states, it is important to understand the law in your state. If you are a user of medical marijuana and are unclear on the law, or have been charged with possession or use of marijuana and think you may have a medical defense, it would be beneficial to talk to a criminal defense attorney about your situation.

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